The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-12-07

/ Chiefjustice fancy said:
"If any State deems the retail and internal traffic
IN asoen' Spills l5a aa or debancherv see
nothing in the Constitution of the United States to
from p. ohibting altogether if it thinks proper
'Justice Grier in still more emphatic Ian
| guage said
"Tbe true question presented by these acts. and
one which am not disposed eyade, whether
States have right prohibit the sale and consump-
ton OF article OF which they believe to
pauoerism and crime. Without attem ptng to define
nav arc sS be- red that eery aw 81 for e e
strant punishment of crime for the preservation
of the public peace health, and morals, must
within this category.
1T is not necessary for the sake of iustfying the
State legislation under consideration, to array
the appalling statistics of misery, pauperism and
crime which have their origin in the abuse OF
ardent sp rts. The police power which is exclusively
in the States is alone competent to the correcon Of
these great evils and all measures of restraint or
the scope of that authority.
Mr.. Justice Woodbury. observed:
:, how can they 1.-THE States be sovereign within
sr spect,ve sphere without power to regulate an
how when and where it shall be conducted in articles
Intimately connected either with public morals the
public safety or public prosperity
"Mr. Justice Mclean. among other things.
said:
"a State regulates its domestic commerce, con-
tracts the transmission of estates real and personal
and acts upon internal matters which relate to ts
federal government has power The acknowledged
police power of a State extends often to the de-
Everythinp preisdicial to the health Or mopals Of
city may be removed.
In Bartemeyer VS.. Iowa u.s. Wall, 1921. it
was said that prior to the adoption of the four
teenth amendmeDth State euactments regu-
latine or prohibiting the traffic in intoxicating
liquors raised no question under the Constitu
ton of the United States, and that such legisla-
ton was left to the discretion of the respective
States. subject to other limitation than those
imposed by their own Co Institutions or by the
Gvx,tt ali Anfo-
lative powers. Referring to the contention that
the right to sell intoxicating liquors was secured
by the fourteenth amendment, the court said
that, so far as such right existed, il is not
of the rights growing out OF citizenship OF the
United States In Beer Company Massa-
chusetts 1917 o. s., 33) it was said that as q
MEASURE of police regulations looking to tho
preservation of public morals, State law pro-
hibiting the manufacture and sale of intoxi-
eating liquors is not repugnant to any clause Of
the Constitution of the United States
Finally Foster vs.. Kansas (112. q. S. 206).
the court said that the question as to the consti
tutional power OF a State to prohibit the manu-
facture and sale OF intoxicating liquors was no
longer open one in this court. These cases rest
upon the acknowledged right of the several
States of the Union to control their purely in
:ernal affairs, and in SO doing to protect the
health. morals and safety OF their people by
regulations that do not interfere with the
cution of the powers of the general government,
violate rights secured by the Constitution of
the United States The power to establish such
regulations, as was said in Gibbons VS.. Ogden
10, Wheat, 203) reached everything within the
territory of State not surrendered to the
national government
sit is. however, contended that, although the
State may prohibit the manufacture of intox-
eating liquors for sale or barter within her linz
It's for general use a beverage, 100 convention
or Legislature has the right, under form of
government, to prohibit any citizen from manu-
featuring for his own use. or for export. OF stor-
age. article of food or drink not endangering
or affecting the rights of others The argument
made in supnort of the first branch Of this prop
ositIon. briefly stated. is:
'i'That in the implied compact between the
State and the citizen certain rights reserved
by the latter which guaranteed by the con-
stitutional provisions for the protection Of life.
liberty and property against deprivation without
due process of law, and with which the State
cannot interfere; that among those rights is
that of manufacturing food drink; that while
according the doctrines OF the commune. the
State may control the tastes. appetite. dress,
food and drink of the citizen. our system of gov
eminent. based upon the individuality and intel
ligence Of the people, does not claim to control
him, except as to his conduct to others, leaving
him the sole judge as to all that only affects
himself
SIT will be observed that the proposition and
the argument u1ade in support of il equally con-
cede that the right manufacture drink for
personal is subject to the condition that such
manufacture does not eudanger or affect the
rights OF others II such manufacture does
prejudieally affect the rights and interests of
tho community, it follows. from the very prem
ises stated by counsel, that society has the
power TO protact itself by legislation against the
Injurious consequences of that business AS
said in Mum vs. Illinois 1874 q. S., 1914:
While power does not exist with the whole peo-
pie to control rights that purely and exclu-
sivey private. the government may require
each citizen TO so conduct himself and use his
own property as not unnecessarily to injurs an
other
'sBut by whom or by what authority is it to
be determined whether the manufacture of par
ticular articles of drink. either for general use
for the personal use of the maker will in uri
ously affect the public? Power determine
such questions rs to bind all must exist
somewhere, else society will be at the mercy Of
11yy thoS~
or passion, may be willing to imperil the peace
and security of the many, provided only they
are permitted to do as they please Under our
system that power is lodged with the legislative
branch of the government. Il belongs to that
department to exert what are known az the po- |
lice powers of the State. Il must determine |
primarily what measures appropriate
needful for the protection of the public morals |
the public health or the public safety.
ut does not at all follow from these princi- !
pies tna. every statute enacted ostensibly for
the promotion of these ends is to be accepted as
a legitimate exerton of the police powers of the |
State. There are. OF necessity. limits beyond |
which legislation cannot rlghtfullv GO IA the !
courts must obey the Constitution rather than |
the law making department. of government. it |
must, upon its responsibility determine whether
in any particular case these limits have been |
passed.
Ito what purpose it was said in Marburv |
VS.. Madison Il. CT. 137-i67l are powers linn |
tied, and to what purpose is that limitation |
committed to writing if these limits |
time be passed by those intended TO be |
restrained? The distinction between a govern
ment with limited and unlimited powers is |
abolished If these limits do not confine the per- |
whom they imposed and if acts |
prohibited and acts allowed of equal obliga- |
tion.' The courts are not bound by mere forms. !
are they to be nisled by mere pretenses |
They at liberty, indeed. under a solemn |
duty, TO look at the substance of things when |
ever they enter upon the inquiry whether the |
Legislature has transcribed the limits of it's |
authority If, therefore. statute purporting |
have been enacted to protect the public |
health, the public morals. or the public safety, |
,T1Sta tfo1r
jec,s or is palpable invasion of rights secured !
by the fundamental law. it il the duty Of the |
courts adjudge, and thereby give effect to I
the Constitution.
keeping in view these principles govern /
ing the relations with each other of the judicial |
and legislative departments of government, it is |